Powell v. Collins

• Citation: 332 F.3d 376
• Decision Date: 07 May 2003
• Docket Number: No. 98-4053.,98-4053.
• Parties: Tony M. POWELL, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

332 F.3d 376

Tony M. POWELL, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.

No. 98-4053.

United States Court of Appeals, Sixth Circuit.

Argued November 28, 2000.

Decided and Filed May 7, 2003.

Supplemental Order Filed June 17, 2003.

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James V. Schuster (briefed), Taft, Stettinius & Hollister, Cincinnati, OH, Mark A. Vander Laan (argued and briefed), Dinsmore & Shohl, Cincinnati, OH, William S. Lazarow (briefed), Public Defender's Office, Ohio Public Defender Com'n, for Petitioner-Appellant.

Michael L. Bachman, Office of Attorney General, Federal Litigation Section, Claude N. Crowe, Office of Attorney General, Cincinnati, OH, Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellee.

Before DAUGHTREY, CLAY, and GILMAN, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which GILMAN, J., joined. DAUGHTREY, J. (pp. 402-405), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Petitioner, Tony M. Powell, appeals from the district court's order denying his motion for reconsideration of the court's judgment denying Petitioner's motion for an evidentiary hearing and discovery as well as his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner was convicted on two counts of aggravated murder, among other counts, and was sentenced to death. On both direct appeal and collateral review, the Ohio courts affirmed Petitioner's conviction. The United States District Court for the Southern District of Ohio denied his petition for a writ of habeas corpus, and thereafter issued a certificate of probable cause pursuant to 28 U.S.C. § 2253.

On appeal, Petitioner raises numerous assignments of error, including whether he was denied due process by being deprived of the expert psychological assistance recognized by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and whether he was deprived of the effective assistance of counsel at the guilt and sentencing phases of his trial. Although we agree with the district court that Petitioner's challenges to the guilt phase of his trial do not merit habeas relief, we conclude that Petitioner was denied his right to psychological assistance and effective assistance of counsel during the sentencing phase of his trial, and that the state trial court improperly denied Petitioner's motion for a continuance prior to the sentencing phase. Accordingly, we REVERSE the district court's denial of the writ on these bases, and we REMAND to the district court with instructions to issue a writ of habeas corpus vacating Powell's death sentence unless the State of Ohio conducts a new penalty proceeding within 180 days of remand.

I. BACKGROUND

On July 29, 1986, Petitioner was arrested in Cincinnati, Ohio, in connection with the death of seven-year-old Trina Dukes. The Ohio Supreme Court explained the pertinent facts leading to Petitioner's aggravated murder conviction as follows:

On July 29, 1986, Trina Dukes, age seven, was playing with her cousin Marcorsha Dukes and another child in front of the Dukes family's home in Cincinnati. Appellant, Tony M. Powell, approached the three children and asked Trina and Marcorsha if they knew how to ride a bike. Trina replied, "Yes." The three children followed Powell around the corner to 214 West Liberty Street.

Powell asked Trina to come upstairs with him and told the other two to leave. He led Trina to the fourth floor and told her to take off her clothes. (He later admitted to police that he had intended to "fuck" Trina.) Trina cried and said she wanted to go home.

Meanwhile, Marcorsha had told her grandfather, Robert Dukes (known as "Big Duke" to his grandchildren), where Trina had gone. Dukes and Marcorsha's brother Marvin went to investigate. Marcorsha led them to the building where Powell had taken Trina.

Dukes went behind the building and called Trina's name. Trina called back, "Big Duke, Big Duke." Powell grabbed her mouth to quiet her cries. Dukes entered the building and ran upstairs, followed by Marchorsha and Marvin. Hearing their approach, Powell picked up Trina. As he did, she defecated on him. He threw her out the window.

When Dukes and the children reached the third-floor landing, they heard a crash. Then Powell, wearing no shirt, ran downstairs past them, saying that someone had been beating him up. The Dukeses proceeded to the fourth floor. Looking out a window, they saw Trina's nude body lying next to some garbage cans. The Dukeses summoned the police and paramedics. Although Trina was still breathing when the paramedics arrived, she was dead by the next day.

Meanwhile, Powell was leaving the building. On his way out, he encountered Shirley Lee, who lived there. He pushed her aside and mumbled, "I did what I intended to do to that bitch." Then he ran down the street. Police later found Powell hiding behind the refrigerator in his mother's apartment.

Deputy Coroner Ross Zumwalt performed an autopsy on Trina's body. He found numerous petechia, or small hemorrhages, on Trina's face. He also found bruises and abrasions on the inner surface of the lips and six small scratches on the neck. According Zumwalt, these injuries indicated that Trina had been partially asphyxiated by a hand clamped over her mouth.

Zumwalt also found a 5.7-inch laceration along Trina's chest and numerous other lacerations, bruises, and abrasions on Trina's head and body, consistent with a fall. Zumwalt concluded that Trina's death resulted from "blunt impact to the head, [and] the trunk, with multiple injuries and smothering."

State v. Powell, 49 Ohio St.3d 255, 552 N.E.2d 191, 193 (1990) (alteration in original). Petitioner agrees with the recitation of facts found in this opinion and does not deny on appeal that he committed the acts which led to Trina's death.

Trial Proceedings

On September 5, 1986, a Hamilton County, Ohio, grand jury returned a five-count indictment charging Petitioner with the following violations of the Ohio Revised Code: aggravated murder during a kidnapping in violation of § 2903.01 with a kidnapping specification (Count One); aggravated murder during a rape in violation of § 2903.02 with a rape specification (Count Two); kidnapping by restraining the victim in violation of § 2905.01 (Count Three); kidnapping by removing the victim from the place where she was found in violation of § 2905.01 (Count Four); and rape in violation of § 2907.02 (Count Five). Petitioner was adjudged indigent and was appointed counsel by the Hamilton County Court. He entered a plea of not guilty to the charges.

On September 17, 1986, Petitioner's trial counsel filed a written motion for appointment of a psychiatrist or psychologist to assist in Petitioner's defense. The presiding judge orally denied the motion on September 23, 1986. Later, on December 18, 1986, counsel asked the trial court to reconsider its decision denying psychological or psychiatric assistance. At that time, Petitioner's defense counsel noted that they had recently received Petitioner's juvenile court records and psychological evaluations and that those documents revealed mental deficiencies. Counsel further claimed that these deficiencies warranted the appointment of an expert to assist the defense in the presentation of its case. Defense counsel argued that these evaluations also suggested a "neurological component underlying some of his acting out behavior." But the motion was again denied.

Recognizing, however, that Petitioner's mental competency had been placed in issue, on December 23, 1986, the trial judge ordered that Petitioner undergo psychological testing at the court's psychiatric center. Dr. Nancy Schmidtgoessling, a clinical psychologist at the center, was appointed as a "friend of the court" and about a week later performed a psychological evaluation of Petitioner. On January 5, 1987, defense counsel orally renewed their request for the appointment of an expert to assist them in reviewing Dr. Schmidtgoessling's report "so that [counsel] can understand exactly what it means." (J.A. at 922.) But the trial court once again denied the oral motion "for a psychiatrist or psychologist to be at [their] elbow[s] during the course of the trial, or to have a Court-appointed psychiatrist or psychologist to discuss this Central Psychiatric report with you." (J.A. at 922-23.)

Defense counsel then filed a suggestion of incompetency. On January 6, 1987, approximately one week before trial, Dr. Schmidtgoessling testified in a hearing concerning the results of her competency evaluation of Powell. She stated that she examined Powell for approximately two and one-half hours and found him alert, able to communicate, and able to comprehend not only the charges against him but also the dire consequences of a guilty verdict. She also noted that, due to a psychological deficit, Petitioner had "a conduct disorder, unsociably aggressive, or to use the adult term, he has an anti-social personality." In explanation, Dr. Schmidtgoessling defined an antisocial personality as follows:

It is a person who essentially acts out the problems instead of psychologically acting it out. They act them out because of guilt and anxiety, and they lack empathy, so they do not appreciate the feelings of other people when they are doing something.

They tend to be pushed and pulled and want short-term goals rather than long-term goals. They are rather impulsive in their acts, meaning they don't subject their acts to critical [thinking]. They just sort of do something because they want to or feel like it.

(J.A. at 929.) Finally, she testified that, although Petitioner has a mild mental defect, his condition did not meet the legal definition of insanity because that defect is not "of...